Analysis: Quis custiodet ipsos custiodes…?

THE Secretary of State has officially announced that MI5 is to take over security primacy from the PSNI in Northern Ireland from 2007. Although this was originally Patten recommendation 6.15, it has been opposed strongly by the SDLP and raises many interesting questions about how terrorism here will be fought in the future, and how our security services will be held accountable.This is not an unexpected announcement, as it is understood to have also been recommended in the Chilcott report (which was never published), but it is a proposal that hasn’t really been analysed.

The new leading role for MI5 is interesting in a number of respects.

Firstly, the timing. Policing and Justice was supposed to be devolved (in the context of IRA decommissioning) to the Assembly, with legislation to that effect to be introduced by this summer, according to the Comprehensive Agreement. Whether the Government is still aiming to work to the timetable of this practically defunct document is unclear, but a cross-community vote would have been required and the British Government said it “will work to promote the necessary confidence to allow such a vote to take place within two years”.

Anyway, in 2007, it was expected – and if there is a political miracle, I suppose it still could happen – that Ministers in a Northern Ireland Executive in the Assembly would be in ultimate charge of the PSNI. As it is, a Direct Rule Minister will remain where the buck stops.

The PSNI currently has security primacy in Northern Ireland, while ‘the Security Service’ (what most of us know MI5 as) has had the lead responsibility throughout the rest of the UK since 1992. It is no big secret that there has been tremendous competition between different security agencies in the past, here and in GB.

That unhealthy rivalry has, during the Troubles, meant information was not shared properly. It could lead to botched operations, as detailed in, for example ‘Phoenix: Policing the Shadows’, when an Army patrol might stumble blindly into a police security operation, causing it to be abandoned. In the worst circumstances, this lack of communication led to agents who were being run by one arm of the State killing agents in another, as suggested by Martin Ingram in ‘Stakeknife‘.

The Police Ombudsman is currently investigating a number of controversial killings . However, she can only investigate complaints against the PSNI, not the military, although their work often intertwines.

For example, the PSNI hasn’t fired a plastic bullet since 2002, and that has been influenced by the fact that the Ombudsman must investigate all such incidents when they happen, and there is much greater control over how the police use them. However, the Army can also use plastic bullets, and while there are mechanisms to hold it to account, they are unlikely to result in any action.

While it could be argued that the Army has fired plastic bullets in justifiable circumstances in recent years, we know from experience that it is not held to account by the Courts or the Independent Assessor for Complaints Against the Military for misdeeds in Northern Ireland. Any punishment during the Troubles has been token.

To extrapolate the plastic bullets situation to intelligence gathering – part of which includes agent handling and running informers – in national security matters (as opposed to ‘ordinary’ criminal matters) raises further concerns about accountability. If these practices become the exclusive preserve of MI5, the Ombudsman will, from 2007, not be able to investigate complaints about informers and agents, because they will be under the control of the military Security Service.

Given the past activities of some agents or informers – and that’s not to deny that many have saved lives in very difficult and dangerous circumstances – that amounts to a real democratic deficit.

Security Minister Ian Pearson has said: “I am not persuaded therefore that looking at complaints made against members of the armed forces would be appropriate [for the Ombudsman]. There are separate arrangements through the MoD for a completely different complaints procedure.

“I am sure I could contemplate cases where complaints might be made that relate to both the Army and to the police jointly. In those circumstances, the Police Ombudsman would investigate the complaint against the police or officers and it would be for the Army complaints procedure to deal with the complaints against Army personnel.”

While the Government has “encouraged” “good working protocols” between the two, it is hardly the best way to operate where there are joint cases, particularly as the remits of the Ombudsman and the Independent Assessor of Military Complaints differ so much. The latter has far fewer powers, and it is difficult to see how the Government will attempt to resolve potentially differing interpretations of the circumstances of a case where the Ombudsman says one thing and the Army complaints assessor another.

In addition, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has noted that police investigations of alleged criminal behaviour by members of the armed forces could not be supervised by the Independent Commission for Police Complaints for Northern Ireland (ICPC) or the Independent Assessor of Military Complaints Procedures.

The Human Rights Commission has already pointed out the accountability problem:

“[W]e are distinctly unhappy that the remit of the Police Ombudsman does not extend to investigating allegations of improper conduct raised against members of the British Army in Northern Ireland, even when at the time the soldiers in question were operating in aid of the civil power.

“In this regard there is a serious gap in the current accountability arrangements, since the Independent Assessor of Military Complaints Procedures (currently Mr Jim McDonald), who holds office under section 98 of the Terrorism Act 2000, has no power to himself conduct investigations into alleged misconduct by soldiers. The army would be investigating itself in these instances, or the police would doing so even though the police were directing the army in the situation in question.

“In these three areas we would like to see the remit of the office of the Police Ombudsman extended. We hope very much that the Northern Ireland Affairs Committee will make recommendations to that effect when it issues its report.”

The Northern Ireland Affairs Committee, chaired by former NIO minister Michael Mates MP, saw some merit in this argument in its recent report on the Police Ombudsman, and it will be interesting to see if the Government pays attention to this recommendation:

“While it is not presently clear that the extensions to the Ombudsman ’s remit sought by the Northern Ireland Human Rights Commission are justified, we do believe that these proposals have illuminated potential weaknesses in the present complaints arrangements which have been identified by the Ombudsman herself. We think that these deserve further, thorough consideration by the government.”

The SDLP said it was the only party that met Sir John Chilcott to oppose his alleged recommendation about the transfer of lead responsibility on national security matters. Mark Durkan said:

“The SDLP gave Mr Chilcott a very clear message. We are totally opposed to any move to take intelligence policing from the PSNI and give it to MI5 or British Army intelligence. That would put intelligence policing beyond the accountability of the Policing Board and the Police Ombudsman, Nuala O’Loan – just as they are breaking through and completely reworking how intelligence policing is carried out in our society.

“Sinn Fein’s simplistic slogan on disbanding Special Branch is dangerous. The securocrats are alarmed by the success of the Policing Board and the Police Ombudsman in reworking intelligence policing. They could use Sinn Fein’s slogan as a guise to hand it over to MI5. That would undermine Patten. Worse, it would give intelligence policing over to those most involved in collusion. The SDLP will not tolerate it. We will fight any such proposal tooth and nail. The police service must have the range of responsibilities set out in Patten, including intelligence policing.”

The SDLP did not make a submission to the NI Affairs Committee (the UUP and Sinn Fein did), despite this rhetoric. The SDLP also have a strange interpretation of the Patten report, which was explicit about where responsibility should lie. However, the party has raised legitimate points.

Given its interest in these matters, it seems odd to say the least that Sinn Fein did not once refer to any of this in its submission to the NI Affairs Committee, which should keep conspiracy theorists happy.

It is now clear though, that when Sinn Fein eventually signs up to policing (which is expected to coincide with the IRA ending all paramilitary activity, or at least putting clear blue water between itself and SF), that it will not have access to the sensitive PSNI intelligence. That will have been shifted to MI5. Is SF’s hatred of Special Branch so great that it is prepared to forego such potential goodies? It just seems so unlike SF…

The SDLP has numerous direct references to this subject on its website. Despite lots of press releases about collusion with loyalists involving MI5, the Sinn Fein website refers to the transfer of lead responsibility of intelligence gathering to MI5 just once – on Thursday.

In his own analysis in the Indo, Alan Murray writes: “Amazingly, Gerry Adams welcomes this potential change which probably leaves the British mandarins at Stormont chortling with laughter.

“Because the implication that accompanies MI5 intelligence supremacy in the North, is the reality that if and when Sinn Fein joins the Policing Board, the Chief Constable of the day will be able to respond to penetrating questions from republican representatives with the perfectly legitimate and honest response “Sorry Gerry, that is an intelligence matter, I don’t know and it’s not my responsibility.””

The Sinn Fein statement was remarkably muted, in comparison to its response to other British announcements. Gerry Kelly said:

“Today’s announcement is a pre-emptive strike by the British establishment ahead of the transfer of powers. It is designed to prejudice the transfer of powers in favour of British state interests by designating matters due to be transferred, as excepted matters. Sinn Fein made it clear to both governments that this is unacceptable.”

Perhaps there are other reasons for SF’s relative silence on the issue, based on the very different cultures within Special Branch and MI5. Five is deeply analytical, highly bureaucratic, hoards information, and has been criticised for being slow to act, poring over intelligence assessments instead of taking necessary action. Special Branch here has been seen as emotionally attached to the notion of beating the IRA, ‘taking the battle’ to republicans in some senses. MI5 also shifts its desk officers around every couple of years, whereas a Special Branch officer would have built up years of experience in Northern Ireland.

Perhaps it is MI5’s lack of emotional attachment to taking on Irish terrorism, and occasional inaction and incompetence that defines Sinn Féin’s relaxed attitude to future changes in counter-terrorism.

MI5 whistleblower David Shayler seemed frustrated by the emphasis on analysis, and questioned why MI5 was not more pro-active when taking on the IRA.

“It was farcicial. There I was with a fast-moving target – the IRA were planting bombs down the street and our Security Service remained obsess with pedantic drafting and redrafting of documents.

“I questioned whether time would be better spent investigating these IRA terrorist targets… I could see no point in spending days poring over the wording of routine documents,” he said, in a possible reference to the warrants for telephone taps.

Murray raised other pertinent questions in his article: “For instance will the Garda be allowed to communicate and liaise with British spooks? Will Bertie Ahern or his successor from 2007 be able to get answers from the Secretary of State in the North after MI5 takes over and closes down the limited information access through the Policing Board that currently exists?”

The PSNI Chief Constable has also been remarkably relaxed about his responsibilities handed to another agency. He told the Blanket last year that transfer of national security powers was a “matter for government, it is as simple as that, it is not a matter for policing.”

“I am not sure you devolve responsibility for something that is a national issue,” Hugh Orde added, perhaps unsurprisingly for a Met cop who investigated allegations of collusion between the security agencies here and loyalist paramilitaries, and who is probably comfortable with the model employed in London.

Security journalist Alan Murray has also pointed out that there has been a drastic reduction in the sheer numbers of informers used in Northern Ireland. He estimates 300 have gone, and more officers left Special Branch after Patten than any other part of the police service.

The SDLP disagrees with the Chief Constable’s position and has called for “[t]he devolution of justice powers, with unionists and nationalists underwriting each other’s security. Regional security should be left in the hand of the politicians of the region. That is fundamental to solving the divisions in our society”.

Also in the SDLP’s response to the Chilcott report, it stated:

“During those meetings [with Chilcott] it became clear to us that Sir John, as part of his remit to consider wider lessons, was examining the relationship between the police and MI5 in intelligence gathering. One of the reasons for this was the need to prepare for the devolution of justice and policing powers. Others have also informed us of a great anxiety within the British system at the prospect of devolved ministers having responsibility for policing.

“The British Government appears to have received the report from Sir John in July 2003. However, no details of it have been published, despite SDLP requests that this be done. Indeed, the Secretary of State has refused to provide us with any information on it whatsoever.

“Newspaper reports have, however, alleged that Sir John recommends giving MI5 oversight of all intelligence gathered in the North, including all Special Branch informants, and that MI5 is to recruit handlers to this end. These changes, it is reported, would erode Special Branch’s current role.”

Chilcott, a former Permanent Secretary at the Northern Ireland Office, was originally asked to report on the Castlereagh holding centre break-in, where even some outspoken unionist politicians seemed to restrain themselves from blaming the IRA.

If Chilcott did indeed recommend that MI5 take on national security, it merely reinforces the theories of those who suspected that the purpose of the robbery was not to acquire information on informers, but to discredit Special Branch in order to make the transition of responsibilities to MI5 that much easier.

Another theory that implicates British intelligence is that the break-in was to protect the agent Stakeknife, while another accuses rogue or retired Special Branch officers of involvement in a bid to undermine the Agreement.

The Daily Telegraph said Chilcott concluded that “at least one serving officer and one retired officer offered the IRA the opportunity to get the information. Their motivation is believed to have been an attempt to undermine the political process because they knew the Provisionals would be found with the documents and blamed for their theft”. I have no idea if this is true.

It is probably only coincidence that Larry ‘the Chef’ Zaitschek expressed fears of his imminent extradition in January.

Special Branch chief Bill Lowry’s swift and angry exit from the scene after ‘Stormontgate’ also indicates further major differences in attitude towards the Republican Movement between Special Branch and the Government. (The Police Ombudsman investigated a complaint by Lowry that he had been forced out by MI5, but she rejected his claim.)

Perhaps it is possible to draw some parallels between what has been happening behind the scenes in Northern Ireland recently, and what occurred when MI5 took the lead in the fight against the IRA in Great Britain in 1992, where there was undisguised hostility between the Security Service and the Metropolitan Police Special Branch (MPSB).

Each agency argued that the other was ineffective. For example, in its submission to the Cabinet for retaining primacy, the MPSB falsely blamed MI5 for the death of WPC Yvonne Fletcher in 1984, which infuriated MI5. This, and MPSB leaks to the press about MI5 ineffectiveness, was said to have turned the Home Office against the Met’s Special Branch.

Although the MPSB had had reasonable success in GB against IRA operations in the late 1980s, the mortar attack on 10 Downing Street encouraged MI5 – seeking a strong post-Cold War role – to lobby for primacy.

The Soho bomb in April 1992, in which the IRA bomber had been under MPSB surveillance, and the explosion in the City of London just days after the general election, appear to have been the final nails in the MPSB’s coffin. Home Secretary Ken Clarke moved swiftly, and announced the change in responsibility for counter-terrorism on May 8.

It is entirely possible that events surrounding Omagh, Castlereagh and Stormontgate have been used as evidence of ineffectiveness by different agencies here, as leaks to the press always have.

It is difficult to understand why such a recommendation on national security would have been placed within Chilcott’s remit to report on, and as the report was never published, his official conclusion that there was no evidence of government agency involvement in the break-in carries little real weight. Certainly the tactics at Castlereagh bore some similarity to those used by the covert methods of entry team that destroyed Steven Inquiry files on British agent Brian Nelson in Carrickfergus.

If the Government is telling us that it is transferring responsibilities to MI5 in Northern Ireland because it was recommended by the Patten report, then it should also pay attention to the NI Affairs Committee recommendation above and to another of Patten’s proposals (6.44) – that a senior judicial figure based in Northern Ireland should be appointed to independently monitor surveillance activities, the use of informants, undercover operations and the interception of communications.

Until it does, no-one will be watching the watchers.